II 

114TH CONGRESS 

1ST SESSION S. 1082 

To amend title 38, United States Code, to provide for the removal or demotion 

of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 23, 2015 

Mr. RUBIO introduced the following bill; which was read twice and referred 

to the Committee on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to provide for the 

removal or demotion of employees of the Department 

of Veterans Affairs based on performance or misconduct, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Department of Vet5 erans Affairs Accountability Act of 2015’’. 


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1 SEC. 2. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON 

2 PERFORMANCE OR MISCONDUCT. 

3 (a) IN GENERAL.—Chapter 7 of title 38, United 

4 States Code, is amended by adding at the end the fol5 lowing new section: 

6 ‘‘§ 714. Employees: removal or demotion based on 

7 performance or misconduct 

8 ‘‘(a) IN GENERAL.—The Secretary may remove or 

9 demote an individual who is an employee of the Depart10 ment if the Secretary determines the performance or mis11 conduct of the individual warrants such removal or demo12 tion. If the Secretary so removes or demotes such an indi13 vidual, the Secretary may— 

14 ‘‘(1) remove the individual from the civil service 

15 (as defined in section 2101 of title 5); or 

16 ‘‘(2) demote the individual by means of— 

17 ‘‘(A) a reduction in grade for which the in18 dividual is qualified and that the Secretary de19 termines is appropriate; or 

20 ‘‘(B) a reduction in annual rate of pay 

21 that the Secretary determines is appropriate. 

22 ‘‘(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 

23 Notwithstanding any other provision of law, any individual 

24 subject to a demotion under subsection (a)(2)(A) shall, be25 ginning on the date of such demotion, receive the annual 

26 rate of pay applicable to such grade. 


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1 ‘‘(2) An individual so demoted may not be placed on 

2 administrative leave or any other category of paid leave 

3 during the period during which an appeal (if any) under 

4 this section is ongoing, and may only receive pay if the 

5 individual reports for duty. If an individual so demoted 

6 does not report for duty, such individual shall not receive 

7 pay or other benefits pursuant to subsection (e)(5). 

8 ‘‘(c) NOTICE TO CONGRESS.—Not later than 30 days 

9 after removing or demoting an individual under subsection 

10 (a), the Secretary shall submit to the Committees on Vet11 erans’ Affairs of the Senate and House of Representatives 

12 notice in writing of such removal or demotion and the rea13 son for such removal or demotion. 

14 ‘‘(d) PROCEDURE.—(1) The procedures under section 

15 7513(b) of title 5 and chapter 43 of such title shall not 

16 apply to a removal or demotion under this section. 

17 ‘‘(2)(A) Subject to subparagraph (B) and subsection 

18 (e), any removal or demotion under subsection (a) may 

19 be appealed to the Merit Systems Protection Board under 

20 section 7701 of title 5. 

21 ‘‘(B) An appeal under subparagraph (A) of a removal 

22 or demotion may only be made if such appeal is made not 

23 later than seven days after the date of such removal or 

24 demotion. 


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1 ‘‘(e) EXPEDITED REVIEW BY ADMINISTRATIVE LAW

2 JUDGE.—(1) Upon receipt of an appeal under subsection 

3 (d)(2)(A), the Merit Systems Protection Board shall refer 

4 such appeal to an administrative law judge pursuant to 

5 section 7701(b)(1) of title 5. The administrative law judge 

6 shall expedite any such appeal under such section and, in 

7 any such case, shall issue a decision not later than 45 days 

8 after the date of the appeal. 

9 ‘‘(2) Notwithstanding any other provision of law, in10 cluding section 7703 of title 5, the decision of an adminis11 trative judge under paragraph (1) shall be final and shall 

12 not be subject to any further appeal. 

13 ‘‘(3) In any case in which the administrative judge 

14 cannot issue a decision in accordance with the 45-day re15 quirement under paragraph (1), the removal or demotion 

16 is final. In such a case, the Merit Systems Protection 

17 Board shall, within 14 days after the date that such re18 moval or demotion is final, submit to Congress and the 

19 Committees on Veterans’ Affairs of the Senate and House 

20 of Representatives a report that explains the reasons why 

21 a decision was not issued in accordance with such require22 ment. 

23 ‘‘(4) The Merit Systems Protection Board or admin24 istrative judge may not stay any removal or demotion 

25 under this section. 


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1 ‘‘(5) During the period beginning on the date on 

2 which an individual appeals a removal from the civil serv3 ice under subsection (d) and ending on the date that the 

4 administrative judge issues a final decision on such appeal, 

5 such individual may not receive any pay, awards, bonuses, 

6 incentives, allowances, differentials, student loan repay7 ments, special payments, or benefits. 

8 ‘‘(6) To the maximum extent practicable, the Sec9 retary shall provide to the Merit Systems Protection 

10 Board, and to any administrative law judge to whom an 

11 appeal under this section is referred, such information and 

12 assistance as may be necessary to ensure an appeal under 

13 this subsection is expedited. 

14 ‘‘(f) LIMITATION ON REMOVAL OR DEMOTION.—In 

15 the case of an individual seeking corrective action (or on 

16 behalf of whom corrective action is sought) from the Office 

17 of Special Counsel based on an alleged prohibited per18 sonnel practice described in section 2302(b) of title 5, the 

19 Secretary may not remove or demote such individual 

20 under subsection (a) without the approval of the Special 

21 Counsel under section 1214(f) of title 5. 

22 ‘‘(g) RELATION TO OTHER PROVISIONS OF LAW.— 

23 (1) The authority provided by this section is in addition 

24 to the authority provided by subchapter V of chapter 75 

25 of title 5 and chapter 43 of such title. 


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1 ‘‘(2) Subchapter V of chapter 74 of this title shall 

2 not apply to any action under this section. 

3 ‘‘(h) DEFINITIONS.—In this section: 

4 ‘‘(1) The term ‘individual’ means an individual 

5 occupying a position at the Department of Veterans 

6 Affairs but does not include— 

7 ‘‘(A) an individual, as that term is defined 

8 in section 713(g)(1); or 

9 ‘‘(B) a political appointee. 

10 ‘‘(2) The term ‘grade’ has the meaning given 

11 such term in section 7511(a) of title 5. 

12 ‘‘(3) The term ‘misconduct’ includes neglect of 

13 duty, malfeasance, or failure to accept a directed re14 assignment or to accompany a position in a transfer 

15 of function. 

16 ‘‘(4) The term ‘political appointee’ means an in17 dividual who is— 

18 ‘‘(A) employed in a position described 

19 under sections 5312 through 5316 of title 5, 

20 (relating to the Executive Schedule); 

21 ‘‘(B) is a limited term appointee, limited 

22 emergency appointee, or noncareer appointee in 

23 the Senior Executive Service, as defined under 

24 paragraphs (5), (6), and (7), respectively, of 

25 section 3132(a) of title 5; or 


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1 ‘‘(C) is employed in a position of a con2 fidential or policy-determining character under 

3 schedule C of subpart C of part 213 of title 5 

4 of the Code of Federal Regulations.’’. 

5 (b) CLERICAL AND CONFORMING AMENDMENTS.— 

6 (1) CLERICAL.—The table of sections at the be7 ginning of such chapter is amended by adding at the 

8 end the following new item: 

‘‘714. Employees: removal or demotion based on performance or misconduct.’’. 

9 (2) CONFORMING.—Section 4303(f) of title 5, 

10 United States Code, is amended— 

11 (A) by striking ‘‘or’’ at the end of para12 graph (2); 

13 (B) by striking the period at the end of 

14 paragraph (3) and inserting ‘‘, or’’; and 

15 (C) by adding at the end the following: 

16 ‘‘(4) any removal or demotion under section 

17 714 of title 38.’’. 

18 SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EM19 PLOYEES OF DEPARTMENT OF VETERANS AF20 FAIRS. 

21 (a) IN GENERAL.—Chapter 7 of title 38, United 

22 States Code, as amended by section 2, is further amended 

23 by adding at the end the following new section: 


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1 ‘‘§ 715. Probationary period for employees 

2 ‘‘(a) IN GENERAL.—Notwithstanding sections 3321 

3 and 3393(d) of title 5, the appointment of a covered em4 ployee shall become final only after such employee has 

5 served a probationary period of 540 days. The Secretary 

6 may extend a probationary period under this subsection 

7 at the discretion of the Secretary. 

8 ‘‘(b) COVERED EMPLOYEE.—In this section, the term 

9 ‘covered employee’— 

10 ‘‘(1) means any individual— 

11 ‘‘(A) appointed to a permanent position 

12 within the competitive service at the Depart13 ment; or 

14 ‘‘(B) appointed as a career appointee (as 

15 that term is defined in section 3132(a)(4) of 

16 title 5) within the Senior Executive Service at 

17 the Department; and 

18 ‘‘(2) does not include any individual with a pro19 bationary period prescribed by section 7403 of this 

20 title. 

21 ‘‘(c) PERMANENT HIRES.—Upon the expiration of a 

22 covered employee’s probationary period under subsection 

23 (a), the supervisor of the employee shall determine wheth24 er the appointment becomes final based on regulations 

25 prescribed for such purpose by the Secretary.’’. 


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1 (b) APPLICATION.—The amendment made by sub2 section (a) shall apply to any covered employee (as that 

3 term is defined in section 715 of title 38, United States 

4 Code, as added by such subsection) appointed after the 

5 date of enactment of this section. 

6 (c) CLERICAL AND CONFORMING AMENDMENTS.— 

7 (1) CLERICAL.—The table of sections at the be8 ginning of such chapter, as amended by section 2, 

9 is further amended by adding at the end the fol10 lowing new item: 

‘‘715. Probationary period for employees.’’. 

11 (2) CONFORMING.—Title 5, United States 

12 Code, is amended— 

13 (A) in section 3321(c), by— 

14 (i) striking ‘‘Service or’’ and inserting 

15 ‘‘Service,’’; and 

16 (ii) inserting at the end before the pe17 riod the following: ‘‘, or any individual cov18 ered by section 715 of title 38’’; and 

19 (B) in section 3393(d), by adding at the 

20 end after the period the following: ‘‘The pre21 ceding sentence shall not apply to any indi22 vidual covered by section 715 of title 38.’’. 


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1 SEC. 4. COMPTROLLER GENERAL STUDY OF DEPARTMENT 

2 TIME AND SPACE USED FOR LABOR ORGANI3 ZATION ACTIVITY. 

4 (a) STUDY REQUIRED.—Not later than 180 days 

5 after the date of the enactment of this Act, the Comp6 troller General of the United States shall conduct a study 

7 on the amount of time spent by Department of Veterans 

8 Affairs employees carrying out organizing activities relat9 ing to labor organizations and the amount of space in De10 partment facilities used for such activities. The study shall 

11 include a cost-benefit analysis of the use of such time and 

12 space for such activities. 

13 (b) REPORT TO CONGRESS.—Not later than 90 days 

14 after the completion of the study required under sub15 section (a), the Comptroller General shall submit to the 

16 Committee on Veterans’ Affairs of the Senate and the 

17 Committee on Veterans’ Affairs of the House of Rep18 resentatives a report on the results of the study. 

Æ 


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